Trials & Litigation

Provocation isn't an excuse for lawyer's F-word email, judge says

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A New York lawyer who called opposing counsel an “asshole” in an email didn’t get any sympathy when she claimed she was provoked.

U.S. District Judge P. Kevin Castel of Manhattan upheld a magistrate judge’s opinion cautioning White Plains lawyer Denise Savage that “incivility among counsel will not be tolerated” and warning of sanctions if there is similar misconduct. The New York Law Journal (sub. req.) has a report.

In an Aug. 14 opinion, Castel said Savage’s claim that opposing counsel provoked her does not justify the email. “In the realm of professional conduct,” Castel wrote, “provocation is, at most, a mitigating circumstance and not a complete defense to wrongful conduct; the same is true under the Federal Sentencing Guidelines … and the rules of the fifth-grade classroom.”

According to Castel, Savage’s email told opposing counsel “You’re an asshole” and “Don’t f— me.” Savage also accused the opposing lawyer of unethical behavior, Castel said, but she “implied that the behavior would be exposed if, but only if, counsel filed a motion directed to her client’s conduct.” Her email also stated that she had recorded certain conversations with the opposing lawyer, but she now concedes that statement wasn’t true.

Castel said the email’s “overall tone, context and content” impaired future cooperation between the lawyers and the communication was “abusive litigation conduct.”

Savage told the New York Law Journal her email was “inappropriate, immature,” but she is being singled out despite uncivil conduct by the opposing lawyer. She told the publication he had repeatedly yelled at her and told her to shut up. She also alleged the opposing lawyer and his client destroyed evidence but there was no finding of bad faith, so there were no consequences. She said the lie about the recorded conversation “was an attempt to keep this guy [the opposing lawyer] honest, as misguided as it was.”

The case is Alexander Interactive Inc. v. Adorama Inc.

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